These actions were initiated on June 28, 1996, by the Director
of the Water Protection Division, U.S. EPA, Region III
("Complainant"), pursuant to Section 1414(g)(3)(B) of the Safe
Drinking Water Act (SDWA), as amended, 42 U.S.C. § 300g-3(g)(3)(B).
The three complaints charged Respondents with violations of
attached Administrative Orders in that Respondents failed to comply
with monitoring, reporting, and public notification requirements of
the Act and applicable regulations at 40 CFR §§ 141.21 and 141.31.
Among other things, the complaints allege that Respondents failed
to sample and analyze for total coliform bacteria for various
months commencing in May 1992 and ending in January 1996. Each
complaint identifies one Olan Hott as owner and operator of one of
three Leisure Valley Water Systems (West, Central, and East) and
demands the statutory maximum administrative penalty of $5,000, for
a total in the three proceedings of $15,000.

After proceedings not here relevant, Respondent served an
answer, grounds of defense, and a motion to dismiss on April 28,
1997, arguing that the Leisure Valley Water Systems did not fall
under the jurisdiction of the SDWA. This motion, supported by
affidavits, was based upon the assertion that the Leisure Valley
West, Central and East Water Systems did not each have at least 15
regular service connections or regularly serve at least 25
individuals so as to be "public water systems" as defined by the
Act and regulations. By an order, dated February 18, 1998, the
proceedings were consolidated and Complainant, having made no
response to the motion to dismiss, was ordered to show cause, if
any there be, why the complaints should not be dismissed.

On March 18, 1988, Complainant filed a Reply to Respondent's
Motion to Dismiss (also intended to be a response to the ALJ's
order to show cause) and, on March 27, 1998, Respondent filed a
Response to Complainant's Reply to Motion to Dismiss.

As indicated previously, Respondent's motion to dismiss is
based upon the assertion that the three water systems at issue are
not "public water systems" as defined by the SDWA and regulations,
because the systems do not have "at least fifteen regular service
connections or regularly serve at least twenty-five individuals."
Respondent's Answer, Grounds of Defense, and Motion to Dismiss at
4. This contention is supported by the affidavits of Heidi Hott and
one Luther Powers, dated April 24, 1997.

Ms. Hott, identified as Olan Hott's daughter in the Response
to Complainant's Reply to Motion to Dismiss, states that she works
for Olan Hott as manager of Leisure Valley in White Sulphur
Springs, West Virginia, and that she has inspected the three water
systems identified in this action. She states that the West Leisure
Valley System has 11 service connections used by "year-round"
residents. These 11 service connections serve 24 persons.
Additionally, she states that the West System temporarily serves 24
campers for hunting and fishing [purposes].

Ms. Hott states that the Central Leisure Valley System has
four service connections used by "year-round" residents. These four
service connections serve five persons. Additionally, she states
that the Central System serves eight campers for hunting and
fishing [purposes].

Ms. Hott says that the East Leisure Valley System has ten
service connections used by "year-round" residents. These ten
service connections serve 21 persons. Additionally, she says that
the East System temporarily serves 17 campers for hunting and
fishing [purposes].

Mr. Luther Powers, who is not otherwise identified, states
that he has inspected the Leisure Valley water systems identified
herein and confirms that the West Leisure Valley System has 11
service connections used by "year-round" residents, that the
Central Leisure Valley System has four service connections used by
"year-round" residents and that the East Leisure Valley System has
ten service connections used by "year-round" residents.

Because the Leisure Valley West, Central and East Systems do
not each have at least 15 service connections or regularly serve at
least 25 individuals, Respondent argues that the systems are not
"public water systems" as defined by the Act, 42 U.S.C. § 300f(4)
or 40 CFR § 141.2, or "community water systems" as defined by 40
CFR § 141.2. Accordingly, Respondent asserts that the SDWA does not
apply and that the complaints should be dismissed for lack of
jurisdiction.

Complainant's Reply

In reply, Complainant says that the three water systems
identified in the complaints are public water systems, subject to
the requirements of the SDWA (Reply at 2). Complainant alleges that
in August 1991, one month after EPA issued final Administrative
Orders against the Respondents, the State of West Virginia
conducted a site visit of each system and found that all three
respondents met both the alternative jurisdictional criteria of the
SDWA.(1)

As support for the above assertions, Complainant has attached
the Declaration of David R. Thomas, an engineer and inspector
employed by the West Virginia Department of Health and Human
Resources. Mr. Thomas states that among his duties as an inspector
are conducting sanitation surveys and annual and routine
inspections of water supply systems. He says that he has inspected
numerous water supply systems and that from 1991 to 1995 he
inspected the Leisure Valley East, West and Central Systems a
number of times, averaging at least one or two visits per year.
Referring to an inspection of the Leisure Valley Systems conducted
on September 26, 1991, Mr. Thomas states that he spoke with a

Mr. Al Williamson, the operator of the Leisure Valley Systems at
the time, who informed him of the numbers [of people and service
connections] shown on the attached visit report.

The Official Visit Report signed by Mr. Thomas, dated
September 26, 1991, identifies the facility as the Leisure Valley
MHP (Mobile Home Park) and states that the East System had 25
[service] connections serving 60 people, that the Central System
had 18 [service] connections serving 40 people and that the West
System had 28 [service] connections serving 70 people. The report
indicates that the Park has 100 sites and a maximum population
[capacity] of 250 people. Mr. Thomas says that almost all the lots
were occupied by a mobile home or a camper trailer and that each
lot, whether or not occupied, had a connection for drinking water.
Stating that many of the trailers and mobile homes had porches,
fences, metal skirts as underpinning and/or blocks under the axles
and could only be moved by a great deal of effort, he opined that
these trailers and mobile homes were there on a permanent basis.
On November 9, 10, and 12, 1993, Mr. Thomas conducted sanitary
surveys of the Leisure Valley Central, East and West Water Systems,
respectively (Declaration, dated March 12, 1998, at 2). He states
that Mr. Williamson was still the operator of the three systems and
that the service connection and people served numbers in the survey
reports were provided by Mr. Williamson.(2) The Survey Report for the
Central Water System, dated March 11, 1994, which was forwarded to
Mr. Hott in Great Falls, Virginia, by a letter of even date,
states, inter alia, that the system provides water to 15
residential connections. The Survey Reports for the East and West
Systems, dated March 16, 1994, state that the East System provides
water to 20 residential connections and that the West System
provides water to 21 residential connections. These reports were
forwarded to Mr. Hott in Great Falls, Virginia, by letters, dated
March 16, 1994.

Mr. Thomas states that almost all the lots at the sites were
occupied by either mobile homes or camper trailers and that each
lot, whether occupied or not, had a connection for drinking water.
He reiterates assertions that many of the trailers and mobile homes
were there on a permanent basis and could only be moved with a
great deal of effort. Additionally, Mr. Thomas states that other
unidentified visits to the Leisure Valley Systems confirmed
observations he made during the visit in September 1991 and the
sanitary surveys conducted in November 1993.

As further factual support for its position that the water
systems at issue are subject to the SDWA, Complainant has attached
the Declaration of Gary K. Wilson, dated March 12, 1998. Mr. Wilson
is also an engineer and inspector employed by the West Virginia
Department of Health and Human resources. He conducted a sanitary
survey of the Leisure Valley Central Water System on June 11, 1997,
during which time he performed a "spot check" to determine the
accuracy of the number of service connections stated in Heidi
Hott's affidavit.(3) He concluded that the number of service
connections stated by Ms. Hott was reasonably accurate. Mr. Wilson
used a "rule of thumb" of 2.5 persons per service connection to
estimate the population of the Leisure Valley Systems (Campground).
He confirmed observations by Mr. Thomas during visits in 1991 and
1993 that many of the trailers and mobile homes were there on a
permanent basis. Mr. Wilson estimated that the campground was
approximately 75% full, apparently meaning that approximately 75%
of the lots or sites were occupied [by trailers or mobile homes].

The Sanitary Survey Report referred to above was forwarded to
Mr. Hott at Stephenson, Virginia by a letter, dated July 8, 1997.
Among other things, the report states that the systems provide
water service to approximately 74 residential customers, serving a
population of approximately 185 people. The report notes that 25 of
the customers are full-time residences and that the remaining
residences are individually owned camps. The camps are reportedly
connected to the systems "year-round" and owners may come and go as
they please.

Complainant points out that the complaints allege that
Respondents violated Administrative Orders, dated July 31, 1991,
attached to the complaints (Reply at 2). Complainant further points
out that in order to be a "public water system" as defined by the
regulation (40 CFR § 141.2), a system of piped water to the public
for human consumption must have at least 15 service connections or
regularly serve an average of at least 25 individuals daily at
least 60 days out of the year. Complainant asserts that site visits
by the State of West Virginia conducted within one month of the
issuance of the Administrative Orders and subsequent thereto
[described above] confirm that the Respondents herein met both of
the alternative jurisdictional criteria of the SDWA (Reply at 2,3).
Moreover, Complainant says the Respondent's conduct, i.e.,
monitoring and analyses reports were submitted at least part of the
time, demonstrates that the systems were "public water systems"
when the violations occurred.

Complainant points to the preamble to the initial SDWA
regulations, 40 Fed. Reg. 59566 (1975), as evidence that, from the
inception of the regulations, EPA intended that public
accommodations, serving transients and having their own water
systems, be subject to the Act, if the facilities had at least 15
service connections or served a daily average of at least 25
persons (Reply at 5). Such systems specifically listed included
campgrounds, trailer camps, restaurants, motels, and other
facilities having the requisite number of service connections or
serving the requisite number of people. Such systems were
designated "non-community water systems" which were defined simply
as all public water systems which were not community water systems
(40 CFR § 141.2).

Complainant emphasizes that the affidavits submitted by
Respondent in support of the motion are dated some 14 months after
the last violations cited in the complaints and alleges that the
affidavits only address the then current status of the systems ,
rather than the status of the water systems at the time of the
violations (Reply at 8). Moreover, Complainant contends that, even
if taken at face value, the affidavits at most deprive Complainant
of jurisdiction of only the Central System (Reply at 8).

According to Complainant, Respondent has acknowledged that
Leisure Valley West has 35 service connections and that Leisure
Valley East has 27 service connections. Complainant arrives at
these figures by adding the number of connections stated in the
Hott and Powers affidavits, 11 for the West System and 10 for the
East System, to the number of campers appearing in Ms. Hott's
affidavit, 24 and 17, respectively. Complainant argues that this
addition is proper, because it establishes that the jurisdictional
requirement of 15 service connections has been met even if some of
the connections are inactive [for portions] of the year (Reply at
9).

In support of the above argument, Complainant cites an EPA
memorandum "Guidance From Hotline Compendium", issued July 1992,
Subject: Incremental Service Connections. The memorandum states
that 40 CFR Part 141 does not address the treatment of unused
service connections. It provides, however, that EPA's policy has
been that a system which serves at least 25 people or has at least
15 service connections, meets the federal definition of a public
water system, regardless of whether the connections are in use. The
memorandum notes that States may, and some do, regulate systems
with fewer service connections. The memorandum further states that
EPA policy has also been that systems which do not have at least 15
service connections in use, or serve at least 25 people, are
considered not to be "active" public water systems and are,
therefore not required to comply with 40 CFR Part 141. This concept
of "inactivity" is explained as being limited to systems which dip
below the 15-connection threshold for a substantial period of time,
i.e., a year or more. The memorandum reflects EPA recognition that
some systems, such as mobile home parks or small housing
developments, may have more than 15 connections, but whose used or
active connections frequently fluctuate above and below the 15-connection threshold. The memorandum points out that regarding such
systems as alternately subject and not subject to the regulations
would create havoc with regulatory tracking and oversight and
states that for this reason, EPA considers such systems to be
active. It provides, however, that the States are free to use their
own discretion in this regard.

In view of the foregoing, Complainant argues that a finding
that all three systems were public water systems during the period
covered by the complaints is consistent with the SDWA and that the
motion to dismiss should be denied (Reply at 13).

Respondent's Response

Respondent alleges that subsequent to the filing of the
complaints, Mr. Hott, at considerable personal sacrifice, cost, and
time has complied with the recommendations of the State of West
Virginia and closed the East and West Systems, connected all
residents to the Central System, installed a chlorination tank for
that system, obtained proper certification for its chief operator,
and conducted recommended testing and sampling (Response at 2).
Respondent further alleges that the system, which has been
centralized and reworked, meets all of the requirements of the
State of West Virginia and of EPA regardless of the number of
service connections. Respondent contends that EPA's objective
should be compliance with the requirements for the provision of
safe water rather than to punish the operators of small water
facilities by insisting on a fine once the operator has met the
requirements of the State and of EPA.

Respondent asserts that his conduct is not relevant to whether
the SDWA applies (Response at 3). Respondent says that his
representatives were informed by government agents that the SDWA
applied and argues that he was justified in relying on this advice.
Respondent points out that his counsel raised the jurisdictional
issue and, that, notwithstanding the advice of counsel that the
SDWA might not apply, Respondent proceeded to comply with
requirements of the State and of EPA in this respect.

Respondent points out that the numbers of service connections
and of residents reported by West Virginia inspector David Thomas
in reports of his September 1991 inspection and his November 1993
sanitary surveys were based upon hearsay statements and were not
independently confirmed (Response at 4). Respondent notes that the
Thomas reports do not distinguish between full-time residents and
service connections used on a part-time basis by those engaged in
hunting and fishing. Moreover, Respondent emphasizes that the
number of service connections stated in the Hott and Powers
affidavits were confirmed as "reasonably accurate" by West Virginia
inspector Gary Wilson and contends that these figures should be
used to determine jurisdiction. Respondent emphasizes that
Complainant has the burden of presenting a prima facie case and
asserts that Complainant may not carry that burden by relying on
unconfirmed hearsay statements.

Respondent points out that using the figures in the Heidi Hott
affidavit the 12 full- and part-time connections in the Central
System do not meet the requirements of a "public water system" and
alleges that Complainant has conceded that fact (Response at 4).
Regarding the West and East Systems, Respondent says that
Complainant's position appears to be that all service connections
are to be counted in determining jurisdiction irrespective of
whether the connections are used full-time, once a year, or not at
all. Respondent argues that as a matter of logic, service
connections used on a temporary basis or not at all should not be
counted in determining jurisdiction (Response at 5).

The term "public water system" means a system for
the provision to the public of piped water for human
consumption, if such system has at least fifteen service
connections or regularly serves at least twenty-five
individuals. Such term includes (A) any collection,
treatment, storage, and distribution facilities under
control of the operator of such system, and (B) any
collection or pretreatment storage facilities not under
such control which are used primarily in connection with
such system.

The regulation, 40 CFR § 141.2, defines "regularly serves at
least twenty-five individuals" as meaning "regularly serves an
average of at least twenty-five individuals daily at least 60 days
out of the year":

Public water system or PWS means a system for the
provision to the public of piped water for human
consumption if such system has at least fifteen service
connections or regularly serves an average of at least
twenty-five individuals at least 60 days out of the year.
Such term includes (1) any collection, treatment,
storage, and distribution facilities under the control of
the operator of such system and used primarily in
connection with such system, and (2) any collection or
pretreatment storage facilities not under such control
which are used primarily in connection with such system.
A public water system is either a "community water
system" or a "noncommunity water system".

A "community water system" means a public water system which
serves at least 15 service connections used by year-round residents
or regularly serves at least 25 year-round residents. 40 CFR §
141.2. All other water systems are "noncommunity water
systems".(Id.)

In accordance with SDWA § 1414g-3(g)(3)(A), 42 U.S.C. § 300 g-3(g)(3)(A), a civil penalty under the Act may only be assessed for
violation of an [administrative] order. Administrative Orders
attached to the complaints are dated July 31, 1991, and the
validity of the orders depends initially upon whether the Leisure
Valley Water Systems were "public water systems" on that date. As
noted, Complainant relies upon the inspection conducted by
Mr. Thomas of the West Virginia Department of Health on
September 26, 1991, which states that he was informed by Mr. Al
Williamson, identified as the operator, that the West System had 28
connections serving 70 people, that the Central System had 18
connections serving 40 people and that the East System had 25
connections serving 60 people. Respondent argues that these
statements are hearsay and were not confirmed by Mr. Thomas'
independent observation and thus, should not be credited over the
Hott and Powers affidavits. The Administrative Orders were issued
to Mr. Olin Hoot [Olan Hott] as the owner and operator of the
systems on July 31, 1991, and Mr. Williamson's relationship to Olan
Hott whether lessee, employee or other agent is not explained. If
Mr. Williamson was an agent or employee of Olan Hott, his
statements may be regarded as binding admissions rather than
unconfirmed hearsay.

Mr. Williamson is reported as being the operator of the
Leisure Valley Systems at the time of the sanitary surveys
conducted by Mr. Thomas in November 1993. The West System was
reported to have 21 residential connections, the Central System
was reported to have 15 residential connections and the East System
was reported to have 20 residential connections. Although the
reports do not distinguish between full- and part-time service
connections, the survey reports prima facie reflect that the number
of service connections equal or exceed the number required to be a
"public water system" under the Act and regulations. The reports
identify Mr. Hott as the owner and were mailed to him in Great
Falls, Virginia in March of 1994.

The Administrative Orders required Mr. Hott to, inter alia,
comply with 40 CFR § 141.21(a) by sampling and analyzing for
coliform bacteria a minimum of one time each month, three times
each calendar quarter. Violations of this requirement cited in the
complaints were for various months beginning in May 1992 and ending
in January 1996. In this regard, Complainant alleges that the Hott
and Powers affidavits speak only as of the date executed, April 24,
1997, and may not be accepted as evidence that the systems at issue
were not public water systems at earlier times, e.g., January 1996,
the month of the last failure to sample and analyze alleged in the
complaints. The affidavits do not state the date or dates the
systems were inspected and Respondent's Response does not directly
address this question. Moreover, it is not clear whether a
significant number of the service connections could be considered
"inactive" during all or portions of the period of the alleged
violations.

Respondent's obligations under the orders are dependent upon
the systems being, and continuing to be, public water systems. It
is concluded that this issue should not, and may not, be decided on
the present record. It follows that the motion to dismiss will be
denied and the jurisdictional and, if necessary, other issues will
be decided after a hearing.

1. Administrative Orders attached to the complaints, dated
July 31, 1991, identify the owner and operator of the systems as
Mr. Olin Hoot.

2. The Survey Reports do not contain any data on the number
of people served by the residential connections.

3. The Sanitary Survey Report, dated June 26, 1997, is
confined to the Central Water Treatment and Distribution System,
because the systems are being consolidated so that the well for the
Central System will serve the three systems.

4. By a contemporaneous order, the parties are directed to
exchange prehearing information.